Bray v. Bray

Alabama Court of Civil Appeals

May 11, 2018

Michael Brayv.Jennifer Bray (Schafer)

Appeal
from Winston Circuit Court (DR-11-86.02)

DONALDSON, JUDGE.

Michael
Bray ("the father") appeals from the judgment of
the Winston Circuit Court ("the trial court")
granting Jennifer Bray (Schafer) ("the mother")
sole physical custody of the parties' children ("the
children"). We dismiss the appeal because it was taken
from a nonfinal judgment.

Facts
and Procedural History

On
November 9, 2013, the father filed a complaint seeking a
modification of the judgment divorcing him and the mother and
also a finding of contempt against the mother. The mother
answered and asserted a counterclaim seeking a modification
of custody to grant her sole physical custody of the children
and child support from the father. On June 28, 2017, after a
trial, the trial court entered a judgment granting sole
physical custody of the children to the mother, granting
visitation to the father, and ordering the father to pay the
mother child support. Although the judgment modified the
divorce judgment in other respects, the judgment did not
include a ruling on the father's contempt claim.

On July
5, 2017, the father filed a motion to reconsider the
judgment, requesting a hearing.[1] On July 26, 2017, the father
filed a motion to alter, amend, or vacate the judgment or, in
the alternative, a motion for a new trial, again requesting a
hearing on the motion. The trial court did not conduct a
hearing or rule on the father's motions.

On
October 23, 2017, the father filed a notice of appeal to this
court. On appeal, the father contends that the denial of his
July 26, 2017, motion by the operation of law, without a
hearing, was reversible error and that insufficient evidence
supports the trial court's modification of
custody.[2]

Discussion

As a
threshold matter, we must determine whether we have
jurisdiction over this appeal.

"'Even though the issue has not been addressed by
either party, this court must first determine whether it has
jurisdiction over this appeal. "Jurisdictional matters
are of such importance that a court may take notice of them
ex mero motu." McMurphy v. East Bay
Clothiers, 892 So.2d 395, 397 (Ala. Civ. App. 2004).
"[T]he question whether a judgment is final is a
jurisdictional question."

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;In this
case, the father filed a complaint seeking, among other
things, a finding of contempt against the mother, and he
reasserted that claim at trial. The judgment did not dispose
of the father&#39;s contempt claim. Therefore, the
father&#39;s appeal was taken from a nonfinal judgment. See
Martin v. Cowart, 84 So.3d at 116 (holding that a
judgment lacking a disposition of a party&#39;s contempt
petition rendered the judgment nonfinal). Accordingly, we
dismiss the appeal. See Nicke v. Minter, 195 So.3d
274, 278 ...

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